Fowler v Garcia

CITATION:	Fowler & Anor v Garcia [1999] NSWCA 119
FILE NUMBER(S):	CA 40453/98
HEARING DATE(S):	19 February 1999
JUDGMENT DATE:	6 May 1999
PARTIES :	Gregory John Fowler and Larry Warren Bates v Robert James Garcia
JUDGMENT OF:	Meagher JA at 1; Stein JA at 24; Austin J at 25

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	10513/90
LOWER COURT JUDICIAL OFFICER:	Dowd J

COUNSEL:	Appellant/Cross respondents: P.E. Blackett Respondent/Cross appellant: P. Semmler QC
SOLICITORS:	Appellant/Cross respondents: Bartier Perry Respondent/Cross appellant: Turner Freeman
CATCHWORDS:	Negligence - motor vehicle accident - quantum - non-economic loss assessment of most extreme case - calculation of interest pursuant s.73 Motor Accidents Act.
ACTS CITED:	Motor Accidents Act, 1988
DECISION:	Appeal allowed; cross appeal allowed.; Appellant to pay costs of cross appeal, no order as to costs of appeal.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA: 40453/98
CORAM: MEAGHER JA
STEIN JA
AUSTIN AJA

Thursday 6 May 1999.

Gregory John FOWLER v Robert James GARCIA

JUDGMENT

1 MEAGHER JA: The plaintiff, Mr Garcia, sustained severe injury in a motor vehicle accident on 3 December 1988. At the time he was a United States longshoreman visiting Sydney on vacation. His injuries were very severe; in fact, they occupy about five typed pages; they included the loss of an eye.
2 Dowd J found that the accident was caused by the negligence of the driver, Mr Bates, the second defendant. His Honour also found that the plaintiff was guilty of contributory negligence to the extent of 10%. Neither finding was challenged.
3 His Honour brought in a verdict of $1,777,948 in the plaintiff’s favour. It was made up of the following items:
“1.Non-economic loss $125,000

2.Griffiths v Kirkmeyer $10,608
3.Past out of Pocket expenses $98,219
4.Future out of pocket expenses $69,195
5.Past economic loss $350,480
6.Future economic loss $1,321,996
Total $1,975,498
Less 10% contributory negligence $1,777,048
Less credit for payments
made by defendants $ 7,004-
$1,770,044”

4 In this appeal the defendant Mr Bates seeks to challenge items 5 and 6 in that list. In the plaintiff’s cross-appeal, item 1 is challenged. His Honour’s decision not to award interest is also challenged in the cross-appeal.
5 By way of background, it should be noted that the plaintiff was a longshoreman. He always wanted to be one, and still does. His father was one, and so was his grandfather. The evidence was the there were two main types of longshoremen: ordinary longshoremen and crane-drivers, the latter being more generously remunerated than the former. In each type there were two subgroups, casual employees and “steady” employees. The former being employed from time to time, and the latter having permanent jobs; the latter subgroup were more handsomely remunerated that the former.
6 His Honour was very impressed by the plaintiff’s testimony, and believed him on nearly every point. In particular, he found that if the plaintiff had not been injured he would have become a crane driver at…